Delhi High Court
Madan Singh vs State Of The Nct Of Delhi on 27 March, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of reserving Judgment: 13th February, 2026
Date of decision: 27th March, 2026
IN THE MATTER OF:
+ CRL.A. 1344/2011
MADAN SINGH .....Appellant
Through: Mr. Zeeshan Diwan, Mr. Krishna
Datta Multani, Mr. Harsha, Mr. Joel
Jamesh and Ms. Ankita Yadav, Advs.
versus
STATE OF THE NCT OF DELHI .....Respondent
Through: Ms. Kiran Bairwa, APP for the State.
Ms. Astha (DHCLSC) with Ms.
Megha Singh, Advocate for victim/
prosecutrix.
SI Nirankar Nagar, PS Defence
Colony.
CORAM:
HON'BLE MR. JUSTICE VIMAL KUMAR YADAV
JUDGMENT
VIMAL KUMAR YADAV, J.
1. Constraints and restrictions so also the facilities have immense
potential to change the life drastically. The financial constraints coupled
with the lack of proper education, skills and training brought the victim
herein, as many other such individuals land up in the big metropolitan cities,
as this metropolis. The victim, who hails from a North-Eastern state of India,
came from about 2000 kms away to this city looking for a job. It was the
financial constraint of the family which persuaded or in a way compelled a
young girl of about 22 years of age to seek job of a cook and that is how the
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victim / complainant herein landed in the city of Delhi, though, how and
through whom, is not known. She was working as domestic help/cook with
one Mr. Lee, a Korean National, who along with his family was not in the
city and was travelling to Korea during the relevant time i.e. on 26.07.2009.
The family occupied first floor in C-5, Gulmohar Park, New Delhi, whereas
the owner, Mr. Ashok Kumar Soni occupied the ground floor and another
family was in occupation of second floor. On the top floor / terrace, 3
servant quarters were there, each meant for each floor.
2. The complaint / victim, in the absence of her employer, was working
as a caretaker also, but was not permitted to stay in the house for more than
5-6 hours and she, as usual, used to sleep in one of the three servant quarters
on the terrace. One of such room was occupied by the Appellant Madan
Singh, who was employed by the owner of the building residing at the
ground floor, namely Mr. Ashok Kumar Soni.
3. Incidentally, the cooler which was being used by the victim was
malfunctioning for the last about 10 days, and she was, therefore, compelled
to sleep on the terrace in the open. On the fateful day i.e. 26.07.2009, while
the prosecutrix was sleeping on the terrace at about 10:30 PM, the Appellant
herein came there and forced himself upon her despite the resistance offered
by the victim and in the process, the appellant got nail scratches on his chest
and upper body. Somehow, the victim could not save herself and she was
raped.
4. She called her employer telephonically, who in turn, asked her to call
the Police and that is how the information reached to the police and was
recorded as DD No. 28 dated 26.07.1999 (Ex. PW-9/E) at the Defence
Colony, Police Station. SI Sanjay Sharma was assigned the DD, who, being
In-charge of the Police Post, Gulmohar Park reached there alongwith Ct.
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Purshottam and ASI Sri Krishan. The statement of the victim Ex. PW-2/A
was recorded by SI Sanjay Sharma who made his endorsement and got FIR
registered. The FIR No. 205/2009 was assigned to SI Saroj Bala who took
over the investigation therefrom.
5. SI Saroj Bala reached the spot, she arrested the Appellant Madan
Singh, and prepared the site plan Ex.PW-9/A, at the instance of the victim,
and thereafter, the victim was taken to All India Institute of Medical
Sciences, Delhi, (AIIMS), where she was medically examined. The Doctor
who examined the victim gave certain Exhibits which were seized by SI
Saroj Bala through Seizure Memo Ex. PW-4/A, containing vaginal smear,
under garments of the victim, nail clippings of both the hands of the victim
and a sample seal inasmuch as of the aforesaid Exhibits were sealed by the
Doctor.
6. Appellant/accused Madan Singh, who was arrested vide memo Ex.
PW-2/B and his personal search was accounted for through memo Ex. PW-
2/C, made a disclosure statement, Ex. PW-3/B. A wrapper of a condom
which was also found at the spot, was seized through Memo Ex. PW-2/D as
it was alleged that when the Appellant / Accused committed rape, condom
was used. Appellant/accused was also medically examined and Exhibits in
respect of him were also seized. The Appellant too was medically examined
at AIIMS vide, MLC Ex. PW-9/F. After the medical examination of the
Appellant, blood sample of the Appellant was given in a gauze by the doctor
together with the underwear of the Appellant and sample seal, all three were
seized through Memo Ex. PW-3/A.
7. Charge-sheet was filed against the Appellant and the charge under
Section 376 IPC was framed, to which he pleaded not guilty.
8. During the trial, prosecution examined 09 witnesses and thereafter,
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the evidence so coming on record was put to the accused, giving an
opportunity to explain the circumstances in his statement recorded under
Section 313 Cr.P.C. He pleaded innocence and asserted that he has been
falsely implicated in this case. He did not opt to bring evidence in his
defence, although he claimed that the victim was habitual in taking liquor
and on the fateful day, she came back drunk and started abusing the
Appellant therefore, he pushed her and that’s how a sort of scuffle took
place during which she scratched on his chest and lodged a false complaint.
Ultimately, through the Impugned Judgment, the Appellant was convicted
under Section 376 IPC and sentenced to undergo Rigorous Imprisonment
(RI) for a period of 5 years and pay a fine of Rs. 1,000/-, in default to further
undergo Simple Imprisonment (SI) for 6 months.
9. Against the backdrop of the aforesaid facts, the instant appeal has
emerged, whereby it is asserted on behalf of the Appellant that the Learned
Trial Court has not taken into account a very vital statement of the victim
recorded under Section 164 Cr.P.C. She has not even whispered a word of
being assaulted in any manner, leave alone being raped by the Appellant.
The Statement is under oath recorded by a Magistrate, therefore, it should
have been given due credence and weight, which the learned Trial Court has
not given. This reflects that there was something which has not come on
record, and it certainly was something in favour of the Appellant.
10. Learned counsel for the Appellant has further assailed the impugned
judgment that when the assailant was known and identified, then why the
name of the Appellant is not there in the DD-28, through which the initial
complaint was made. In the MLC of the victim, no injury is reported on any
part of the body including the genital area. The FSL report does not support
the case of the prosecution, as neither the nail clippings nor the clothes have
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any traces which may connect or hold the Appellant responsible for the
offence complained against him.
11. It is further contended that this is a case of false implication. Why the
victim lodged a complaint on 26.07.2009, whereas she was allegedly raped
at least 5 times during the last seven days by the Appellant, as has been
stated by victim in the MLC. Why she did not lodge a complaint on the very
first instance when she was violated by the Appellant? What kept her quiet
for all these days and what happened suddenly which prompted her to lodge
a police case?
12. It was elaborated by the learned counsel for the Appellant, that he was
taking rest at around 10:00 PM, when the victim came and started playing
music loudly, which disturbed the sleep of the Appellant. The victim did not
pay heed to the request of the Appellant to lower down the sound. Enraged,
the Appellant threw the speakers of the music system. It was the act of
breaking speakers of the music system which triggered the victim to lodge a
false complaint of rape. The circumstances, as such, do not point out qua the
offence of rape inasmuch as no witness other than the victim is there, no
bodily injury is reflected in the MLC, the FSL result nowhere indicates
presence of semen on the clothes of the victim or the Appellant and above
all the statement under oath recorded on 27.07.2009 by Magistrate under
Section 164 Cr.P.C is completely silent on the aspect of rape and has no
reference at all, not even of molestation or any such attempt.
13. Learned Additional Public Prosecutor, on the other hand, stood by the
impugned judgment and stated that the substantive evidence is what is
material and that leaves no scope for any other inference except that of the
complicity of the Appellant. No evidence in defence has been brought by the
Appellant, despite the fact that opportunity was there with him. As regards
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the flaws in the investigation, it is submitted that the prosecution should not
be allowed to suffer on account of defects in the investigation, if at all,
something was there. It was by force and without consent, as has come on
record, therefore, it is submitted that appeal is bound to fail. There is no
answer with the Appellant about the contradictory stand taken by him
inasmuch as at one stage he says that there was a fight on account of loud
playing of music, but in his statement under Section 313 Cr.P.C., he took a
plea that the victim was a consenting party to the act. He, thus, by
implication says that the sexual intercourse was there. It was by force and
without consent, as has come on record, therefore, it is submitted that appeal
is liable to be dismissed.
14. There are ample evidences on record to reflect that it was not
consensual rather the victim was raped. There was no motive with the
prosecutrix to falsely implicate the Appellant. The silence of the prosecutrix
in her statement to the police with regard to the earlier assaults cannot be
taken against the prosecutrix, especially when her circumstances and
situations are visualized and analyzed. Finally, it is contended that there are
catena of judgments to the effect that the sole testimony of the prosecutrix is
enough to record a finding against an accused, if that is trustworthy.
15. Learned counsel for the Appellant, in order to strengthen his
arguments that non-examination of material witnesses and material
contradictions render the case of the prosecution vulnerable to doubt and
suspicion, placed reliance on the following judgments:-
1. Jasbir Singh vs State (2022) SCC online Delhi 1427.
2. Davinder Singh vs State of Punjab (2023) 19 SCC 229.
16. So far as the propositions of law laid down in the aforesaid
judgments, there is and there cannot be any quarrel qua the same. However,
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the witnesses whom the learned counsel for the Appellant has termed as
material witnesses are, in fact, not as material as it has been sought to be
emphasised upon. The employer of the victim or the landlord of the building
could have been examined and they might have also added some substance
to the case but then their non-examination is not fatal, and in any case, the
Appellant was free to bring them in his defence, if he was expecting
something material and in his favour. There is no answer with the Appellant
on this aspect.
17. As regards contradictions in the statements are concerned, the same
are bound to be there in the narrative for the simple reason that human
limitations are there. A parrot like testimony cannot be expected from the
witnesses. The same event, if narrated by two persons, it would be different
and for that matter the same person who is narrating an incident is bound to
narrate with some variation, some difference each time it is stated by him.
What is of paramount importance is that the substance and the soul of the
narrative should remain intact. It should not be viewed adversely giving any
scope for any kind of doubt that the narrative is incorrect. In this context
reference can be made to the judgments:
In State of Rajasthan vs. Smt. Kalki & Anr., reported in 1981 (2)
SCC 752, it was held as under:-
8. “In the depositions of witnesses there are always some normal
discrepancies however honest and truthful they may be. These
discrepancies are due to normal errors of observation, normal
errors of memory due to lapse of time, due to mental disposition
such as shock and horror at the time of the occurrence, and the
like. Material discrepancies are those which are not normal, and
not expected of a normal person.”
In Narayan Chetanram Chaudhary & Anr. vs. State of
Maharashtra, 2000 (8) SCC 457, the Apex Court held as under:
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42. “Only such omissions which amount to contradiction in
material particulars can be used to discredit the testimony of the
witness. The omission in the police statement by itself would not
necessarily render the testimony of witness unreliable. When the
version given by the witness in the Court is different in material
particulars from that disclosed in his earlier statements, the case of
the prosecution become doubtful and not otherwise. Minor
contradictions are bound to appear in the statements of truthful
witnesses as memory sometimes plays false and the sense of
observation differ from person to person. The omissions in the
earlier statement if found to be of trivial details, as in the present
case, the same would not cause any dent in the testimony of PW. 2.
Even if there is contradiction of statement of a witness on any
material point, that is no ground to reject the whole of the
testimony of such witness.
xxxxxx
There is bound to be some discrepancies between the narrations of
different witnesses when they speak on details, and unless the
contradictions are of a material dimension, the same should not be
used to jettison the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical niceties cannot be
expected in criminal cases. Minor embellishment, there may be, but
variations by reason therefore should not render the evidence of
eye-witnesses unbelievable. Trivial discrepancies ought not to
obliterate an otherwise acceptable evidence.”
18. The view taken by the learned Trial Court and that is settled principle
of law that conviction of an accused can be based on the sole testimony of
the victim/prosecutrix provided her evidence is of sterling quality and
inspires confidence. Learned Trial Court has also considered that very
proposition and recorded a finding against the Appellant. However, learned
counsel for the Appellant has placed reliance on the following judgments in
order to hammer his point that evidence should be aboveboard;
i. Nirmal Premkumar and Another V. State, Rep. by
Inspector of Police, (2024) SCC Online SC 260;
ii. State of Himachal Pradesh V. Sanjay Kumar, (2025)
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SCC Online SC 885;
iii. Rai Sandeep V. State (NCT of Delhi), (2012) 8 SCC
21;
iv. Krishan Kumar Malik V. State of Haryana, (2011) 7
SCC 130.
19. As stated earlier the principle about the sole testimony being
sufficient in such cases is a well entrenched principle followed by Courts
across the length and breadth of the country with the rider that it should be
of sterling quality. And for that matter, as provided in Section 134 Indian
Evidence Act it is the quality not the quantity of the evidence which is
material. Reference can be made to the judgment in Raja vs. State, (1997) 2
crimes 175 (Del), State of UP vs. Kishan Pal, 2008 (8) JT 650 and Lallu
Manjhi vs. State of Jharkhand, (AIR) 2003 SC 854.
20. Learned counsel for the Appellant with the aid of the aforesaid
judgments asserted that the prosecutrix is not a truthful witness inasmuch as
she has initially lodged a complaint of being raped, but on the very next day
in her statement under Section 164 Cr.P.C, she has not levelled any such
allegation of being sexually assaulted. Astonishingly, while deposing before
the Court she again reverted back to her stand in the FIR. Testimony of such
a witness cannot be believed and certainly cannot be treated as that of
sterling quality. In such circumstances, it is argued that sole testimony of the
prosecutrix cannot be relied upon to record a finding against the Appellant.
Some or other kind of corroboration is required, which is not there inasmuch
as neither the medical evidence nor the forensic evidence gives credence or
support to the version of the prosecutrix.
21. It is asserted further that there was no injury on the person of the
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victim especially in the region of genitalia. The hymen had an old tear and
there was no trace of semen either on the clothes or body of the prosecutrix
or the Appellant. In such circumstances, the plea that the Appellant had used
a condom while committing rape is nothing but a ploy to fill the lacuna in
the prosecution’s case. It is, thus, asserted that in view of contradictory
stands and absence of any corroborative evidence either medical or forensic
unequivocally indicate that the Appellant has been falsely implicated in this
case. The stand taken by the Appellant that the prosecutrix has falsely
implicated him, by being enraged on account of the issue of playing loud
music and breaking the speakers of the music system by the Appellant is,
verily, the fact.
22. Appreciation of evidence should not be confined to the written words
in the statement but the same is required to be looked into in the facts and
circumstances of the case, which vary from case to case and from person to
person. It is pertinent to note here that the prosecutrix was about 22 years of
age studied only up to be 10th standard and her circumstances were such
which forced her to travel more than 2000 kms or so from her native place in
Assam to work as a cook in Delhi. She was in the city for about last four
months prior to the incident having no friends, family or support except may
be her employer. However, at the relevant time, even her employer was not
in the country, being a Korean National and travelling to his native, with
family.
23. The landlord of the building residing on the ground floor, with whom
the Appellant was employed, was also not very supportive in the sense that
some of the misdeeds of the appellant, in the shape of tearing the clothes of
the victim which were put out for drying, noting obscene of offensive things
on the door of the servant quarter of the prosecutrix etc., were not checked.
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In fact, when this matter was reported by the prosecutrix to her employer,
who, in turn, directed her to report to the employer of the Appellant i.e.
landlord of the house Mr. Ashok Kumar Soni. He also did not take any steps
to curb the activities of the Appellant rather scolded the victim.
24. Imagine the situation of a person, who is already very vulnerable and
placed in such circumstances. It can be easily visualised that the prosecutrix,
whose vulnerability, constraints and poverty brought her to this city was
rendered further vulnerable due to the unchecked offensive behaviour of the
Appellant which went unabated and reached to the extent to this rape case.
The non co-operative and unsupportive attitude of her employer and the
landlord of the building, were seemingly very dampening rendering the
victim further insecure, vulnerable and susceptible.
25. It indeed is surprising that the prosecutrix did not report the previous
incidents, but reported the incident on 26.07.2009 to her employer, who in
turn asked her to inform the police, which she did. Her statement to the
police resulted into registration of an FIR under Section 376 IPC at about
02:45 AM and the medical examination of the victim was carried out at
03:52 AM at AIIMS. However, she informed the Doctor not only about the
incident, which resulted into registration of the FIR rather the trauma she
faced during last seven days as she was raped by the Appellant on 5/6
occasions. On that very day, in the afternoon, when her statement was
recorded by the Magistrate she did not, surprisingly, utter a word about the
incident of rape(s). It is not easy to reconcile and digest this.
26. The incident of rape took place between 10:30 PM to 12:55 AM on
26.07.2009 and the matter was reported to the police somewhere between
12:00 to 01:00 on the same intervening night of 26/27 July, 2009. When the
medical examination of the victim took place at 03:52 AM, she narrated
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about multiple rapes by the Appellant to the Doctor and in the afternoon of
27.07.2009 within 12 hours, or so she did not utter a word about the incident
of rape. How come that is possible? The circumstances indicate that the
victim was accompanied by police officials, and came into contact with
none other than the hospital staff before her statement was recorded under
Section 164 Cr.P.C. What happened within such a short span of time is
bewildering?
27. Incidentally, the Appellant too was examined in the same hospital i.e.
AIIMS, at around 11:50 AM on 27.07.2009. What went wrong in between
the incident, reporting of incident and the victim making a statement under
Section 164 Cr.P.C is anybody’s guess. It may sound conjecturing but then
the statement under Section 164 Cr.P.C, Ex. PW-2/E, if read then it is
indicative of some confusion in the mind of the victim as to what for she
was there. During the initial questioning by the Learned Magistrate, who
recorded the statement under Section 164 Cr.P.C., the victim has stated that
she has come to the Court in order to tell in respect of her report, which she
has lodged about a boy: “Ek ladke maine report ki hai us sambandh me
batane ke liye”.
28. Change is constant phenomenon, inherent, relevant and present at all
the times in all the spheres of life. With changing times, value systems,
norms, perspectives, thoughts and behaviour also undergo transformation,
may be for good and bad, but then transformation is invariably found. A
decade is enough to change the course of rivers, shapes of mountains, face
of cities and also the human beings. What was in vogue 16 years ago may
not be today. Although, change is constant, so is some of the basic human
nature, but collateral changes are omnipresent in the basic human nature of
love, lust, greed, anger, compassion, kindness, etc. A lot of instances of
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sexual offences go unnoticed on account of being unreported. A female is to
think a thousand times before coming forward to complaint about being
sexually harassed as with changing times things may not be as it used be a
decade ago. Gender equality, openness in society, hesitation etc., have
undergone changes and the present day female is not going to take anything
of such nature by lying down and are coming forward to fight for their
rights. However, it was not so a decade ago, and for that matter even now in
some societies, some areas and communities, the norms are still such which
dissuade and discourage the females, not supportive of their plight, rather
prejudicial to them, which robs the voice of a wronged female. This
phenomena has been observed in various judgments as to what all comes
into play and dictates the behaviour of a victim of sexual offence.
In State of Punjab vs. Gurmit Singh & Ors., (1996) 2 SCC 384, it
was observed that in a tradition bound non-permissive society in India,
victim would be extremely reluctant even to admit that any incident, which
is likely to reflect upon her chastity had occurred, being conscious of the
danger of being ostracized by the society or being looked down by the
society.
29. It may be a case with the victim that she thought that she has to add to
the complaint she has already made to the police, and that is why she tells
about her being working there for the last about 4/5 months and the
employment of the Appellant in the landlord’s house together with the trivial
events which took place in the intervening period i.e. from the arrival of the
Appellant to work with the owner of the building Mr. Ashok Kumar Soni to
the last incident. The Appellant was troubling, teasing and bothering her
repeatedly. She has also stated that the matter was reported to Mr. Ashok
Kumar Soni i.e. the landlord and employer of Appellant, but he also did not
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do anything rather scolded the victim. In the concluding lines of her
statement under Section 164 Cr.P.C., she refers about breaking of the
speakers of the music system by the Appellant. Incidentally, Appellant too
has spoken about the playing of music loudly and the consequent fight
which took place after the Appellant broke the speakers of the music system.
She in a way, elaborate the complete details rather the prelude to the
incident.
30. Here the flaw in the investigation is evident as the Investigating
Officer did not care to look at this aspect and did not even seize the broken
speakers of the music system and did not even care to probe the issue any
further. It cannot be that the police came straightway and arrested the
Appellant. There must be have been an initial probe by the police about the
statement of the victim and then the Appellant must have also stated his
version about the incident, if he was so candid to admit his guilt in the
disclosure statement. According to him, as has been stated by the prosecutrix
too, the issue of music system was there. It is unbelievable that while being
arrested by the police, the Appellant would not mention about all this. The
Investigation Officer should have collected the broken speakers of the music
system as piece of evidence and should have also, for that matter, examined
the employer of the prosecutrix and the Appellant, if not anybody else from
the vicinity.
31. The Investigating Officers invariably collect the copy of the statement
under Section 164 Cr.P.C. Therefore, it cannot be presumed that it was not
done in the instant case. This reflects that the Investigating Officer came to
know what the prosecutrix had stated that too on 27.07.2009, but no efforts
are visible as seemingly not made by the Investigating Officer to look into
the aspects, which emerged in the statement under Section 164 Cr.P.C.
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32. While considering the aspect of defective investigation, it has been
observed in various pronouncements that cause of justice cannot be made to
suffer on account of the defects in the investigation, and the Investigating
Officer should not be given such liberty to dictate the outcome of the legal
proceedings. In this context, a reference can be made to certain important
judgments on the subject:
In C. Muniappan Vs. State of T.N. (2010) 9 SCC 567, the Supreme
Court held that it was a case of highly defective investigation but
this was not the end of the matter, for if primacy was given to
omissions and lapses by perfunctory investigation, faith and
confidence of the people in criminal justice administration would
erode. In such case, there is a legal obligation on the part of the
Courts to examine prosecution evidence de hors such lapses, to find
out whether evidence is reliable or not, and to what extent it is
reliable and whether the lapses had affected the object of finding
the truth. Reference was made to several decisions in support of
said ratio.
In Ganga Singh Vs. State of M.P., (2013) 7 SCC 278, it was held
that Courts cannot acquit an accused on the ground that there were
some defects in the investigation, unless such defects cast
reasonable doubt on the prosecution case.
Similar findings were recorded in Sunil Kundu Vs. State of
Jharkhand, (2013) 4 SCC, 422, holding that lapses or
irregularities in investigation would not be material if the evidence
produced on record, despite the said lapses or irregularities, does
not go to the root of the matter and dislodges the substratum of the
prosecution case.
In Surjit Sarkar Vs. State of West Bengal, (2013) 2 SCC 146,
after referring to several earlier decisions, it has been held that
deficiencies in investigation by way of omission and lapses by
the investigating agency cannot themselves justify total rejection
of the prosecution case and where prosecution evidence de hors
such lapses, when carefully scrutinised and evaluated, does not
affect the object of finding of truth.”
33. Learned counsel for the Appellant, as another leg of the arguments,
has put forth-two fold arguments in relation to section 311 Cr.P.C. and 313
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Cr.P.C. It is stated that in case the counsel is not able to cross-examine the
witness properly, then it is the duty of the Court to see that case is being
conducted properly. Additionally, all the incriminating circumstances are
required to be put to the accused and in case the Court feels that further or
any other evidence is required then with the aid of Section 311 Cr.P.C. even
that should be done.
34. In the instant case, it is submitted that the defence counsel did not
confront the prosecutrix with her statement, recorded under section 164
Cr.P.C. It is submitted that the statement, on the basis of which the FIR was
registered, is poles apart from the statement recorded under Section 164
Cr.P.C. In fact, it is submitted that statement under section 164 Cr.P.C. is
bereft of any instance of anything wrong. The same being on oath recorded
by a Magistrate, should have been given due importance. Incidentally, this
aspect has been dealt with by the learned Trial Court and it has been
observed that the statement under Section 164 Cr.P.C. has a limited purpose.
It may be used to fortify the case of the prosecution or otherwise at the stage
of investigation and secondly, it is useful when the aspect of perjury comes
into picture. Being a prior statement, it can be used to confront the witness
also.
35. Nevertheless the substantive statement or evidence is the evidence
recorded during the trial by the Court. Section 3 of the Indian Evidence Act
defines evidence. ‘Evidence’ means and includes:-
(1) all statements which the Court permits or requires to be
made before it by witnesses, in relation to matters of fact
under inquiry;
`such statements are called oral evidence;
(2) [all documents including electronic records produced
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for the inspection of the Court]; [Substituted by Act 21
of 2000, Section 92 and Sch.II, for the words “all
documents produced for the inspection of the Court”]
such documents are called documentary evidence.
36. That being so, the contentions raised on behalf of the Appellant by the
learned counsels are of no avail.
37. In this context itself, the learned counsel for the Appellant placed the
reliance upon the following judgments:-
i. Sovaran Singh Prajapati vs. State of Uttar Pradesh,
(2025) SCC OnLine SC 351;
ii. Ashok vs. State of Uttar Pradesh, (2025) 2 SCC 381;
iii. Raj Kumar vs. State (NCT of Delhi), (2023) 17 SCC 95;
iv. Machander vs. State of Hyderabad, (1955) 2 SCC 106 [Re
S. 342 of the old Code of 1898];
v. Varsha Garg vs. State of M.P., (2022) SCC Online 986;
vi. Inderjeet Kaur Kalsi vs. NCT of Delhi,(2013) SCC Online
Del 4788; and
vii. Subash Chand Barjatya vs. Madhu Mishra, (2010) SCC
Online Del 710.
viii. Vijay Kumar vs. State of U.P., (2011) 8 SCC 136.
38. Learned counsel for the Appellant has not pointed out as to what
incriminating circumstance was not put to the Appellant and for that matter,
according to him, what prejudice was caused. According to the learned
counsel for the Appellant, who should have been called as a witness,
invoking Section 311 Cr.P.C. is not stated. His assertion that the witness was
not properly cross-examined is subjective opinion. Tomorrow someone else
in his place may put forth the same plea even if further cross-examination is
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carried out. So, unless clear and distinct facts are not established, the
argument remains for the sake of arguments. Courts have been empowered
to call anyone at any stage as a witness provided it goes to serve the ends of
justice. Therefore, the contentions in this context are brushed aside.
39. In view of the foregoing discussion, it is apparent that no two views
are there and as such there is nothing which may be viewed in favour of the
Appellant. As regards, the judgments relied upon, so far as the propositions
propounded in the judgments in Pradeep Kumar vs. State of Chhatisgarh,
(2023) 5 SCC 350 and Kali Ram vs. State of HP, (1973) 2 SCC 808 are
concerned, the same holds field even today. But incidentally, in this case no
two views emerge rather only one view is reflected on record thereby
leaving no scope where choice is there.
40. Learned counsel for the Appellant has placed reliance on the
judgment titled as State of Rajasthan vs. Ani Alias Hanif And Ors., (1997)
6 SCC 162, which explains and reiterates the legal provision as contained in
Section 165 of the Indian Evidence Act. There cannot be two opinions so far
as the statutory provision is concerned, but then learned counsel for the
Appellant again could not point out as to what ought to have been done by
the Court, when the learned counsel for Appellant was there conducting the
case. Undoubtedly, Section 165 Indian Evidence Act, empowers the Court to
obtain or discover proof of relevant facts, but that is not an unfettered right.
Additionally, it provides the ‘Court may’ in order to ascertain facts / proof
as to any question or production of document etc., but may dispense with it,
if the judgment is going to be based upon facts relevant and duly proved. So
it seems that Court did not feel the necessity to invoke Section 165 of Indian
Evidence Act and that cannot be faulted.
41. While relying upon the judgment Rafiq and Anr. vs Munshilal &
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Anr., (1981) 2 SCC 788, it is asserted that a litigant should not suffer
injustice on account of inaction, negligence or misdemeanour of the
Advocate. It is elaborated further by the counsel for the Appellant that the
erstwhile counsel, who conducted the trial, should have been more careful
and concerned and at least confronted the prosecutrix with her prior
statement under Section 164 Cr.P.C. Presuming that the victim was
confronted with the statement, but who knows what answer could have been
there. In all probability, there would have been an explanation justifying the
position. Had it not been the position, the prosecutrix would not have
deposed against the Appellant before the Court rather she would have stuck
to her statement recorded under section 164 Cr.P.C. and not the one which
formed the basis of the FIR. So, even if the erstwhile counsel for the
Appellant before the Trial Court did not do the right things, in the
estimations of the counsel for the Appellant herein, still the substantive
statement recorded before the Court during the trial would have held the
ground. As such, the Appellant cannot derive any advantage out of these
circumstances.
42. As is the settled principle and discussed earlier, testimony of the
prosecutrix alone is sufficient to record a finding of guilt, if it is found
trustworthy. Corroboration is not required. However, in the instant case,
contrary to the submissions of the learned counsel for the Appellant,
corroborative evidence is also there. It is correct that the MLC nowhere
reflects any signs of injury on the body of the victim nor traces of semen,
but then it certainly points out towards recent sexual activity. The doctor
concerned has prepared three slides of the vaginal swab of the victim and it
has been clearly stated in the MLC and FSL report too that three slides of
vaginal swab were prepared. Those slides, reportedly, reflect presence of
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some fluid, which is not semen. However, it is the secretion of fluid during
the sexual activity, as nothing else seemingly could be there. The incident
took place at between 10:30 PM to 12:55 AM in the night of 26.07.2009.
The medical examination of the victim took place at 03:52 AM on the
intervening night of 26-27.07.2009. The proximity of time between incident
and medical examination leaves no scope for any other inference that the
sexual activity, traces of which were found by the Doctor in Ex. PW-1/A
and Ex.PW-1/B was there and it was nothing else except the rape reported
by the prosecutrix.
43. Prosecutrix has reported that she was raped and a condom was used
thus, the traces of semen were not found. Nevertheless the MLC Ex. PW1/A
and Ex.PW-1/B corroborates the version of the prosecutrix. The FSL results
Ex.PW-1/C and Ex.PW-1/D further fortifies it. And so far as the testimony
of the victim is concerned, the same is otherwise aboveboard except for her
statement under Section 164 Cr.P.C., which too does not absolves the
Appellant, but presents a different picture of her being traumatized and
harassed by the Appellant. She is a truthful and trustworthy witness as she
disclosed all the facts at the very first instance to the police and to the
Doctor as well. She was candid and truthful which can be inferred from her
narrative to the police and Doctor. Her initial PCR call contains information
about rape by a boy (Ex. PW-9/E). She was taken to the Hospital where she
not only names the Appellant as the perpetrator of crime, but tells about her
fiance, names him and also told about her first sexual activity four months
back in Assam with her fiance. There was no occasion for her to give
details. She told the Doctor that she had scratched the assailant as also about
the use of condom. The corresponding injuries were found on the person of
the Appellant as can be seen in the MLC Ex. PW-5/A of the Appellant. Four
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fresh injuries were noticed by Dr. Akhilesh Raj (PW-5) all of which were on
the upper body parts on neck, chest, etc.
44. There was no occasion with the prosecutrix to falsely implicate the
Appellant, as has been put forth by the learned counsel for the Appellant.
Had it been so then the statement under Section 164 Cr.P.C. would have also
been on the same lines as was there at the time of registration of FIR and
deposition before the Court. Apparently, police had no occasion to falsely
implicate the Appellant either. On the contrary, the defective investigation
reflects the carelessness on the part of the investigating agency.
45. Appellant has, in his statement under Section 313 Cr.P.C., to the
answer of question no. 18, stated that the prosecutrix used to come home
drunk and on the fateful day also she came drunk. If it was so that the victim
was drunk, then there should have been some reference or trace about
alcohol in the MLC. The doctors invariably mention if they found even the
smell of alcohol. If the victim was drunk at around 10:30-11:00 PM on
26.07.2009, then there is no reason that the doctor would not be able to
ascertain this fact after about 3-4 hours at 03:52 AM on the intervening night
26-27.07.2009, when the victim was taken for her medical examination.
46. Incidentally, the Appellant has taken contradictory stands and tried to
wriggle out of the situation in which he got entangled by portraying that it
was a consensual act, which is contrary to his stand that he has been falsely
implicated. He is blowing hot and cold in the same breath and in the process,
binds himself in a unbreakable bind.
47. The facts and circumstances as discussed herein before disentitles the
Appellant to be given any indulgence, notwithstanding the strenuous
arguments advanced on behalf of the Appellant by the learned counsel. The
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Appellant is unable to puncture the case of the prosecution or to point out
anything which may go in favour of the Appellant.
48. As a result, considering the entire gamut of facts and circumstances,
the Appeal stands declined.
49. The Appellant is called upon to surrender forthwith to undergo the
sentence.
50. Appeal stands disposed of accordingly.
51. Copy of the judgment be transmitted to the learned Trial Court and
the prison authorities for necessary compliance.
VIMAL KUMAR YADAV, J
MARCH 27, 2026/ps/tng
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